Roger Hurlbert and Sage Information Services v. Mark Matkovich and Sallie Robinson

760 S.E.2d 152, 233 W. Va. 583, 2014 W. Va. LEXIS 640
CourtWest Virginia Supreme Court
DecidedJune 5, 2014
Docket13-0217
StatusPublished
Cited by2 cases

This text of 760 S.E.2d 152 (Roger Hurlbert and Sage Information Services v. Mark Matkovich and Sallie Robinson) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roger Hurlbert and Sage Information Services v. Mark Matkovich and Sallie Robinson, 760 S.E.2d 152, 233 W. Va. 583, 2014 W. Va. LEXIS 640 (W. Va. 2014).

Opinions

PER CURIAM:

Petitioners/plaintiffs below Roger W. Hurlbert and Sage Information Services (hereinafter “petitioners”) appeal the Circuit Court of Kanawha County’s January 14,2013, order granting summary judgment to respondent/defendant Mark Matkovich, Acting Tax Commissioner, West Virginia State Tax Department (“Tax Commissioner”) and respondent/intervenor Sallie Robinson, Kanawha County Assessor (“Kanawha County Assessor”) (hereinafter collectively “respondents”), in this declaratory judgment action brought pursuant to the Freedom of Information Act (hereinafter “FOIA”). In granting summary judgment to respondents, the circuit court found that petitioners were not entitled to disclosure of the Computer-Assisted Mass Appraisal (“CAMA”) files for ah real property in the State of West Virginia.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the apphcable legal authority, we find that the circuit court erred in concluding that the CAMA files are categorically exempt from production pursuant to a FOIA request and remand for submission of a Vaughn1 index and further findings by the circuit court consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Petitioner Roger Hurlbert, a resident of California, is the sole proprietor of petitioner Sage Information Services. Petitioners assert that their business involves “the prevention and apprehension of mortgage fraud through the automated verification of appraisal data.” On May 16, 2011, petitioners made a written request to the Tax Commissioner for “a copy, on CD or similar electronic media, of both the assessment files and the CAMA files for all real property in all counties.” Petitioners enclosed a six-page itemization of the fields of data from the CAMA files they were requesting.

, The parties are largely agreed as to the following encapsulation of the tax appraisal process, an understanding of which is necessary to differentiate the various characterizations and labels of the two types of information at issue herein — the assessment files and the CAMA files. The county assessors are charged by statute with the collection of information for use in assessment of property taxes. See W. Va.Code § Il-1A-I2(a) (1991) (“It is the intent of the Legislature that in carrying out the appraisal functions required by this article, the Tax Commissioner shall utilize the county assessors and their employees.”) All county assessors in West Virginia perform Computer-Assisted Mass Appraisal (“CAMA”) and input data collected during their assessment functions into a statewide Integrated Assessment System (“IAS”) maintained and administered by the Tax Commissioner. The Tax Commissioner has access to the information in the IAS (and therefore the CAMA files) for purposes of supervision, auditing, and oversight; however, only the county assessors can input or change the data therein.

As part of the real property assessment process, the county assessor is charged with “mak[ing] out the land books” which contain the tax ticket number, taxpayer name, map, parcel, deed book/page, property description, assessed value, and tax for each parcel of property in the county, as more particularly described in West Virginia Code § 11-4-1 et seq. This information is publicly available in the county offices; respondents contend that the “assessment files” requested by'petition[588]*588ers are merely a compilation of the information in the publicly-available land books.

The CAMA files, on the other hand, may include more detailed information about various properties including sketches/photos of the property, floor plans, number of bathrooms/bedrooms, type of construction material, type of heating, topography, etc. In addition, the CAMA files may contain information which respondents have characterized as sensitive and personal information such as whether the residence has a security system, whether the resident is home during the day, whether the resident has a disability, whether the residence is unoccupied due to nursing home stays or otherwise vacant. With regard to commercial properties, the CAMA files contain information regarding profitsdosses, blueprints, photographs, business income, and other information that could ostensibly provide a competitive advantage. The CAMA files for industrial properties contain similar information but also include the names of buildings and types of storage/operation in each, which respondents allege present homeland security issues.2

In response to petitioners’ FOIA request, the Tax Commissioner: 1) granted the request for the assessment files in exchange for payment of $9.23 in copying expense; and 2) denied the request for the CAMA files, stating that it was not the custodian of those records, but rather, the county assessors were the custodians.3 Petitioners requested that the Tax Commissioner revisit its denial, but the Tax Commissioner refused to change its position. Petitioners did not avail themselves of the assessment files which were offered. At no time prior to the litigation did the Tax Commissioner claim any statutorily-enumerated FOIA exemption; rather, it claimed simply that it was not the custodian of the CAMA files.

As a result, petitioners filed the instant action seeking declaratory judgment and injunctive relief; the Kanawha County Assessor was thereafter granted permission to intervene. The parties exchanged written discovery, followed by cross-motions for summary judgment. The circuit court advised the parties that it believed the matter could be decided as a matter of law and that any factual issues could be expedited and developed through evidentiary testimony rather than discovery depositions. The parties ostensibly agreed; therefore, no depositions were conducted. Nor were witnesses called during the hearing on the motions for summary judgment. Respondents filed multiple affidavits in support of their position; petitioners submitted none. No party requested additional discovery pursuant to West Virginia Rule of Civil Procedure 56(f).

The circuit court granted summary judgment to respondents, concluding that the CAMA files were exempt from production under FOIA In reaching this conclusion, the circuit court found that 1) certain of the CAMA data is exempt from disclosure as “return information” and security system information specifically exempted by West Vir[589]*589ginia Code § ll-lA-23(a) (2007) and “trade secrets” exempted by West Virginia Code § 29B-l-4(a)(l) (2007); 2) the CAMA files contained “information of a personal nature,” the disclosure of which constituted an unreasonable invasion of privacy pursuant to the five-factor test in Syllabus Point 2 of Child Prot. Grp. v. Cline, 177 W.Va. 29, 350 S.E.2d 541 (1986); and 3) because of the foregoing, the issue of whether the Tax Commissioner was the “custodian” of the CAMA files was moot. This appeal followed.

II. STANDARD OF REVIEW

It is well-established that “[t]his Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002). Moreover, “[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1,

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760 S.E.2d 152, 233 W. Va. 583, 2014 W. Va. LEXIS 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roger-hurlbert-and-sage-information-services-v-mark-matkovich-and-sallie-wva-2014.